It’s illegal to punish employees for engaging in protected activity. But for an employer to be liable, the punishment would have to be significant. Minor changes in an employee’s job aren’t enough.
Something like a transfer to an equivalent job generally won’t be a problem unless the employee can show that the new job has less prestige, fewer opportunities for advancement or otherwise is a significant change from the status quo. For example, changing a shift may be adverse if it means less money, a less convenient commute or additional childcare expenses.
Recent case: Charles worked as a math teacher and sports coach at a high school. He helped parents draft a sports-related Title IX discrimination complaint that they then filed in federal court. Soon after, he was transferred to an alternative high school.
He sued, alleging that the employment move was retaliation for engaging in protected activity—that is, that helping to draft the complaint so angered his employer that he was punished.
The court tossed out his case, concluding that Charles hadn’t provided a persuasive argument that the transfer had any negative consequences.
It therefore wasn’t an adverse employment action. (Collins v. Jackson Public School District, No. 14-60768, 5th Cir., 2015)
Final note: Remember that it isn’t just employment-related discrimination complaints that are protected activity. In this case, the teacher’s protected activity fell under another part of the Civil Rights Act—Title IX, which protects students from discrimination in education. Many other laws contain anti-retaliation provisions, including whistle-blower laws.
Before disciplining employees, make sure they haven’t engaged in any protected activity. If they have, verify that the discipline is unrelated, fair and consistent with prior practice. If you wouldn’t punish another employee who hadn’t engaged in protected activity, don’t punish this one.
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